Sexual Harassment Training : ELT, Inc. : AB 1825, Employment Law, Online Harassment, Compliance, and Harassment Training

You’ve probably heard the news by now. (And if you haven't, you’re far too wrapped up in the race for the Democratic nomination.) The California Supreme Court recently issued a significant ruling about same-sex marriage – holding that it’s against the state constitution to deny the benefits of marriage to people based on sexual orientation. (The decision is based in part on a 1948 state case striking down California’s anti-miscegenation laws, which essentially banned the mixing of different racial groups – in marriage, cohabitation, sexual relations, etc.)

So California and Massachusetts are leading the way on recognizing same-sex marriage.  And where they go, others will follow – notably New York state, which just last week pronounced that it will recognize same-sex marriages performed in jurisdictions such as California and Massachusetts. (New York To Back Same-Sex Unions From Elsewhere).

No doubt this decision raises a bunch of interesting legal questions, and will mean a lot of work for employers and government agencies that need to get systems in place to accommodate the change — including everything from benefits administration to employment policies. If you want a great summary of the most important impacts, Littler Mendelson offers a very helpful piece: California Supreme Court Opens the Door on Same-Sex Marriage.

But What About the Impact to the Working Environment?

What most articles you’ll read on this subject don’t cover, is the impact to the work environment. While employees don’t stand around the water cooler talking about the latest and greatest case developments — unless you work in a law firm — employees do take an interest when the developments are as big (and as personal) as this one.

Same-sex marriage tends to be a very polarizing issue – you either support it strongly, or you oppose it vehemently. And there really isn’t a middle ground where reasonable minds can agree to disagree.  That’s because people’s personal views are so often colored and shaped by religious beliefs and strong personal convictions.  In other words, stuff that people take pretty darn seriously.  And because it’s such a heated subject, it’s very difficult (if nearly impossible) to have a civilized discussion on the topic. And this can lead to some very uncomfortable and offensive situations in the workplace.

Employee discussions can lead to serious workplace tensions and productivity issues – and frequently end up as harassment complaints. And if it’s a supervisor who makes offensive statements, not only are you dealing with potential harassment claims, but you may also see the statements used against you in subsequent discrimination litigation.

Plan Ahead – Let Employees Know What’s Expected of Them

Hot political and legal developments will continue indefinitely — that’s a certainty. And unless you’ve told your employees that discussions about politics, religion, morality, and other personal beliefs are completely off limits (an unrealistic and unworkable standard), people are going to, well…chat.

Employers need to take a strong and clear position about the appropriateness of these kinds of discussions in the workplace. There is a delicate balance to strike between allowing reasonable employee conversations on the one hand, and preventing harassment and discrimination on the other.

Don’t assume that employees know what’s off limits.  In fact, you will often find yourself contending with the misguided convictions of employees who believe that the First Amendment allows them to say anything they like at work.  You may also be dealing with folks who believe that religious discrimination laws protect any kind of behavior associated with deeply held moral beliefs – including brazen statements that gay marriage is a sin, or even proselytizing in the workplace.

There’s a recent line of case law addressing the precarious knife’s edge that employers must navigate between sexual orientation harassment on the one hand, and religious discrimination laws on the other.  I would highly recommend at least reading the head note summaries of the following:

• Ng v. Jacobs Engineering Group, 2006 Cal. App. Unpubl. LEXIS 9142 (Cal. Ct. App. Oct. 2006)
• Piggee v. Carl Sandburg College, 464 F.3d 667 (7th Cir. 2006)
• Peterson v. Hewlett-Packard Co., 358 F.3d 599, 601 (9th Cir. 2004)
• Bodett v. CoxCom, 366 F.3d 736 (9th Cir. 2004)
• Buonanno v. AT&T Broadband, 313 F. Supp. 2d 1069 (D. Colo. 2004).

It All Comes Down to Communication – Which Means Effective Training

At the end of the day, your employees will not be materially impacted by the cases you study – or even the policies you write to accommodate these recent changes in the law.  Only well executed, periodic training programs will get people’s attention, and send the message home.

That’s why you need to ensure that your harassment training program has been updated to include the following:

• Sexual orientation and gender identity as “protected categories.”
• Scenarios, examples and Q&A that address not just the prohibition against sexual orientation and gender identity discrimination, but also the issues associated with same-sex marriage, as well as the application of employee benefits to same-sex couples.
• The rules protecting employee privacy, including how questions about an employee’s sexual preferences and lifestyle choices are inappropriate.
• The organization’s commitment to an environment that is inclusive, and values the diversity of its employees.

And rest assured, just because you’re not operating in California or Massachusetts doesn’t mean that the gay marriage issue won’t impact your workplace.  It’s only a matter of time before the U.S. catches up with the rest of the industrialized world. (A highly opinionated statement by this Canadian-born blogger, but happily, I get to do that in this forum…)

And with the likely change of administration in 2009, these reforms are more imminent than ever.  It’s time for your policies and training programs to reflect the realities of the world’s demographics.

No, Gina’s not a person – it’s a new law that every HR, legal and ethics professional should know about. GINA stands for the Genetic Information Nondiscrimination Act, and was just passed into law by Congress on May 21, 2008. Sponsors of the bill called it “groundbreaking” and lauded it as a critical civil rights bill.

GINA is designed to balance the benefits of obtaining and using genetic information for things like research and managing personal health and wellness, with the harm that results when employers and health insurance companies misuse the sensitive data. 
 
What Does GINA Do?
 
GINA is intended to protect us – or our genetic information – from employers and insurers who want to make unfair decisions based on genetic information. The law is actually broken down into three parts.  Some impact health insurers and others impact employers, labor unions and the usual cast of characters under federal antidiscrimination statutes.
 
When it comes to employers, Title II is most important. In simple terms, the law prohibits employers from discriminating on the basis of genetic information. You should of course check out the new law for yourself, but the most significant provisions include:

• A ban against discrimination in hiring, firing, compensation and in the terms, conditions, and privileges of employment based on genetic information.
  
  
• A ban against segregating employees based on genetic information that would deprive them of employment opportunities or their status.
  
  
• A ban on requesting, requiring or purchasing employees’ genetic information except under specific circumstances.
  
  
• Strict confidentiality protections for genetic information, which can be revealed only when permitted by statute (and there are a lot of restrictions here.)
  
  

But I Don’t Have Access to that Kind of Information … or Do I?
 
Not sure if the law applies to you or not?  Do you really have access to this kind of sensitive information?   Don’t dismiss GINA so fast – it’s still worth a good review of your HR and employment law practices:

• A study by the American Management Association revealed that 2/3 of major U.S. employers requires medical examinations for some new hires. And with recent advances in medical technology, it’s possible that genetic information may be revealed as part of that process.  
   
• Genetic information may be revealed during the FMLA process, fitness for duty examinations, or any other process where you obtain medical information from a current employee.
  
  
• Managers may have access to genetic information, but get it in a more casual way – like when an employee reveals that she has a family history of breast cancer or has the gene that makes it more likely that she will develop breast cancer.
  
  

What Should I be Doing Now?
 
To start with, the law doesn’t take effect for another 17 months or so.  That means you have time to get your ducks in a row and make sure that you’re in compliance. You also need to make sure that your managers are educated about the basics of GINA.
 
In short, employers should consider doing at least two things.
 
First, review your current policies and practices.  Hopefully, you’ve already taken extensive measures to limit access to medical information (and even genetic information) which may be disclosed during the recruitment and employment process.  Many laws, such as the Americans with Disabilities Act and similar state laws, already obligate employers to take great care protecting this type of information.  But now is a good time to audit your practices and get your house in order. Also be sure to update your discrimination policy – it should now expressly prohibit genetic discrimination.
 
Second, train your managers about genetic discrimination. My guess is that most of your managers are not well informed about this topic. They may not think twice about taking action based on genetic information. Maybe they’re afraid of skyrocketing health insurance costs if they hire some with a predisposition to a serious illness.  Or maybe they just don’t want to take a risk on someone who may need a lot of leave down the road. 
 
It’s your job to make sure that managers are trained on GINA and understand the basic rules.  But this doesn’t have to be a daunting production.  You don’t need extensive training that’s dedicated to the topic of genetic discrimination. We’re really just talking about awareness and “issue-spotting” here. Roll this training in with other training on harassment and discrimination prevention, which should be covering a variety of topics in any event (not just sex and race).
 
Sounds simple…and it is…so make it happen. 

SHRM and the Ethics Resource Center (ERC) just released The Ethics Landscape in American Business Survey Report (membership required).  The most interesting component, in my opinion, is the list of most commonly observed misconduct in the workplace.  For fifty-seven percent of HR professionals, abusive or intimidating behavior toward employees (excluding sexual harassment) tops the list.

While we’ve seen this issue percolating for years (check out Workplace Bullying, which has an extensive amount of information and resources on the subject), this is the first time I’ve seen bullying tied to a survey on ethics.

And workplace bullying is about more than just soft costs (like low productivity and employee engagement) – it’s now becoming a real liability issue as well, with the case law building.  For example, this past April, the Indiana Supreme Court upheld a $325,000 verdict against a cardiovascular surgeon accused of being a workplace bully.  The case is considered groundbreaking because it categorically supports the contention that there is a legal basis for workplace bullying claims.  And then there’s the 2005 9th Circuit decision that holds that bullying behavior can have a more severe impact on women than it does on men, because women are likely to be more intimidated due to factors such as size and power inequities. (See EEOC v. National Education Association, 442 F.3d 840, 846-47 (9th Cir. 2005).)   So workplace bullying can also support gender discrimination claims.

All of this should be a reminder that your workplace policies need to address the issue of bullying head on – and it should be a clear component of both harassment prevention and ethics training programs.

The SHRM / ERC study’s list of most commonly observed workplace misconduct also serves as a reminder that the bulk of employers’ ethics concerns are really “bread-and-butter” HR / employment law issues:

• E-mail and/or Internet abuse.

• Misreporting actual time or hours worked.  (Is this any wonder given the shocking surge in wage and hour litigation over the past few years?)

• Behavior that places an employee’s interest over the organization’s interests.

• Employees calling in sick when they are not.
  

It’s been more than six years since SOX became law, and almost as long since the Federal Sentencing Guidelines were amended to require Code of Conduct adoption, as well as companion ethics and compliance training programs.  Many employers are on their second, if not third round of Code and ethics training.  Now’s the time to make sure that your training is fresh and updated. Evaluate the topics you’ve already covered, and identify the gaps you want to fill during your next retraining cycle.  And by all means, consider topics that you may not think of as “classic” ethics issues.  Just look at the key concerns identified by the SHRM / ERC study.  While your training program may dedicate significant time to issues like preventing bribes, financial irregularities and potential antitrust violations, these are not the most common ethical missteps taking place at your organization.

It’s all about finding the right balance.